International Politics and the Nuremberg Military Trials

by Devin O. Pendas

Kevin Heller’s magisterial survey of the Nuremberg Military Tribunals offers the first comprehensive account of the trials, as well as an insightful analysis of the tribunals’ jurisprudence and legal basis. Heller is an international lawyer of considerable insight and his assessment of the trials is always judicious, frequently thought provoking, and, even if some scholars may quibble with this or that point, never less than rewarding. Commenting on a book as commendable as this one is difficult, since one risks seeming either banal (if too positive) or petty (if overly critical). Fortunately, as a historian and not an international lawyer, I have an easy out, since I can read Heller’s legal analysis from a different angle.

Heller’s interest in the trials in many cases lies in an assessment of whether the court’s got this or that legal issue correct. For instance, he notes of the tribunals’ rejection of the defense argument that they were (or ought to be) applying American, rather than international law, “this position is clearly correct” (121). Or again, with respect to the Flick and Farben tribunals’ ruling that the deprivation of civilians of industrial property did not constitute a crime against humanity, Heller asserts “this was an unpersuasive interpretation” (247). In other words, one of Heller’s most frequent questions in this book is whether the tribunals were right or wrong in their findings on various issues. He is quite evenhanded in his judgments, as these examples show. He is willing to give credit where it is due, but unafraid to condemn erroneous judgments when they arise. Insofar as this is a book aimed primarily at legal academics and international lawyers, Heller’s judgments will be of considerable interest. Such assessments are of course the lifeblood of legal reasoning. What they are not, however, is particularly historical. The historian’s question would not be, ‘were the judges right?’, but rather, ‘why did they think what they did?’ And here Heller’s assessment tends either toward the internal and formalistic or, especially with reference to the all too easy clemency procedures put in place after the trials, to a straightforward Cold War instrumentalism.

Heller’s concern for the history, as opposed to the jurisprudence, of the NMT, focuses on two aspects. On the one hand, he explains their origin and aftermath in a Cold War frame work. There was initially considerable interest in staging a Second International Military Tribunal focused on major economic actors. The Soviets, for obvious reasons, had a particular interest in such a trial. As the Cold War intensified and the Americans became increasingly suspicious of the Soviets, this project broke down and the US decided to proceed with its own trials under the authority of Allied Control Council Law No. 10. As far as the aftermath of the trials, one of the most striking facts is all those convicted who were not executed were released from prison by the late 1950s, most of them far earlier. This too Heller explains with reference to the Cold War, as the Americans became more interested in German cooperation in NATO than in justice for Nazi atrocities.

The second point of historical interest for Heller is the long-term legacy of the NMT for international law. As he puts it, “a strong case can be made that the NMT trials are of far greater jurisprudential importance than their more famous predecessors” (3). Here his focus shifts away from geopolitics to a more conventional (for lawyers) orientation toward the precedential value of the trials. He shows where subsequent international courts (the ICTY in particular), as well as a few domestic courts, have drawn on and in some cases misread the jurisprudence of the NMT, and makes arguments for ways the NMT precedents could be better mobilized for the continuing development of international criminal law.

The point that I would make is not that any of this is in any way wrong. It is not. Heller’s Cold War argument is compelling. His account of the postwar usage of the NMT is thorough and convincing. Rather, I would like to suggest that this historical account of the NMT leaves open certain questions that would call for a different kind of analysis. One can argue the extent to which all criminal trials are in effect political trials, but in the case of the NMT, this characteristic is so patently obvious as to sometimes seem unremarkable. But it is the politics of the NMT that set them apart from both their predecessors—whether the IMT or the so-called Leipzig trials for German trials after WW I—or the successors in international jurisprudence. The Cold War is only one dimension of this politics, and not always the most important one.

I would like to suggest briefly two additional context that are of decisive relevance for the history of the NMT—and by extension for their impact on the postwar world. The first of these concerns the domestic origins of American international engagement in the 1940s. Elisabeth Borgwardt has argued that the late-1940s marked a moment when the United States sought to export its “new deal vision for the world”[i] Surely it is no coincidence that—although for contingent reasons the Medical Case came first—the NMT originated in the desire to try major industrialists and bankers for their involvement with the Nazi regime. If, for the Soviets, this was appealing as a way to prove that capitalism and fascism were one and the same thing, the American agenda was rather different. It his effort to save capitalism from itself, Franklin Delano Roosevelt had given life to a particularly American vision of anti-trust legislation and litigation as a pillar of democratic politics.[ii] The fact that no small number of the NMT judges were republican opponents of this New Deal vision would surely be relevant for an understanding of their jurisprudence. Certainly the tension between the prosecution and the bench in many of these cases smacks as much of political as jurisprudential disputation.

The second additional context concerns the broader breakdown of the Nineteenth Century world order that gave rise to decolonization, and along with it, created a crisis of the moral underpinnings of international law as these had existed down to 1945.[iii] Loosely, the vision of international humanitarian and criminal law as these existed in the late-Nineteenth and early-Twentieth Centuries depended heavily on the presumption that there existed a community of civilized states, as opposed to the morass of barbaric non-states over which the civilized states had dominion.[iv] International law regulated relations between civilized states, whose treatment of barbarians was largely their own affair. As Heinrich von Treitschke argued in 1898, “all noble nations” had recognized the need to regulate military violence through an international law of war. “There is nothing in international law more beautiful, or showing more unmistakably the continual progress of mankind, than a whole series of principles, grounded only upon universalis consensus and yet as firmly established as those of the Common Law of any nation….the whole trend of political life has come into the open to such a degree that any gross breach of international law immediately causes great irritation in every civilized country.”[v] Yet, Treitschke was careful to add: “It is mere mockery, however, to apply these principles [of international law] to warfare against savages. A Negro tribe must be punished by the burning of their villages, for it is the only kind of example which will avail. If the German Empire has abandoned this principle to-day it has done so out of disgraceful weakness, and for no reasons of humanity or high respect for law.”[vi]

It was precisely this underlying logic of civilization and barbarism that broke down in World War II. The Holocaust was only the most egregious—and to the minds of most of the Allies in the immediate postwar years, not the most important—example. The Nuremberg trials were not only part of a broader effort by the Americans to reconfigure international society along multilateral, “New Deal” lines; they were an effort to reconstitute civilization, with at least an implicit eye on the threat that European barbarism posed for European imperialism.[vii] The coming age of decolonization would, of course, bring this project to ruin. But no one could yet know that at Nuremberg.

[ii] Kim Christian Priemel, “The ‘Industrialist Cases’ and the Case of the Industrialists: Nuremberg as a Forum of Ddecartelization,” in Priemel and Alexa Stiller eds., The Nuremberg Trials Revisited: New Analyses and Interpretations (Oxford and New York: Berghahn, forthcoming).

[iii] Devin O. Pendas, “‘The Magical Scent of the Savage’: Colonial Violence, the Crisis of Civilization and the Origins of the Legalist Paradigm of War,” The Boston College International and Comparative Law Review 30 (Winter 2007): 29-53.

[vii] Christiane Wilke, “Reconsecrating the Temple of Justice: Invocations of Civilization, Humanity, and Justice at the Nuremberg Justice Trial,” Canadian Journal of Law and Society 24 (2009): 181-201.

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